Protection and punishment

WATERLOO, Ontario - Dec. 9 and 10 marked the anniversaries of the Genocide Convention and the Universal Declaration of Human Rights (1948). Both were an acknowledgment of the dark side of European history and embodied the determination to ban vices that had been let loose with terrible consequences by Westerners. Both the vices and the values they offended are universal, not characteristic of any particular civilization or culture but inherent to human nature.

As human beings, we bear rights that are inalienable. Because these arise from the fact of us being human, they are necessarily universal, held equally by all humans. The parallel growth and expansion of human rights and international humanitarian law converged in the protection of civilians and punishment of perpetrators against the backdrop of government-instigated atrocity crimes like genocide, ethnic cleansing and large-scale killings.

Changes in the nature of armed conflict have put civilians on the frontline of conflict-related casualties as well, from about 25 percent during World War I to around 65 percent in World War II and up to 90 percent today. Meantime, globalization has shrunk distances, brought images of human suffering into our daily lives in graphic detail and expanded our capacity to respond meaningfully, thereby increasing the calls to do so. Burma in 2007 was vastly different from Burma in 1988 on this count.

Yet the generals got away with it. Revulsion at the murder of large numbers of civilians in serial atrocities in many parts of the world produced a softening of support for norms and institutions that shield the perpetrators of atrocity crimes from international accountability. As an old joke has it, kill one person, you get sent to trial for murder; kill 10, you get sent to a mental asylum for treatment; kill 10,000 you get sent to Geneva for U.N. peace talks.

At a time when Darfur continues to tug at consciences without borders, in a year in which the military thugs in Burma cracked down on peaceful Buddhist monks, and amid the continuing shame of Guantanamo that mocks the worldwide legacy of the previous champion-in-chief of human rights, it is worth highlighting two notable advances that give cause for cheer: the establishment of the International Criminal Court (ICC) in 1998 and the United Nation's adoption of the responsibility to protect in 2005. Canada played a starring role in the first and the lead role in the second.

Both encroach substantially on national sovereignty with respect to nonintervention and the sovereign impunity of heads of state. Without an international criminal court with universal jurisdiction, the Genocide Convention remained an incomplete instrument. Without R2P, the Universal Declaration of Human Rights was a hollow mockery for many.

The ICC will enable an escape from the tyranny of the episodic of ad hoc tribunals and be a cost-effective alternative with respect to time, money and energy. The prosecution, conviction and punishment of perpetrators helps to bring closure to victims of past atrocities, on the one hand, while also acting as a deterrent to wannabe mass killers and so preventing atrocities in the future.

Both with protection and prosecution, the default responsibility remains with states. Only if and when they are unable or unwilling does the community of states have the duty to step in with international protection and prosecution.

But who is "the international community"? The U.N. Security Council is the only international law enforcement body but faces serious leakage of representational legitimacy with each passing year. How, given their own domestic records, can Russia and China, two permanent members, condemn atrocities by others? The moral authority of the United States, a third permanent member, is also compromised in the aftermath of serious weakening of international humanitarian law, retrenchments from human rights practices, outsourcing of torture and a campaign of active opposition to the ICC. The fixation with the misdirected war on terror has taken America far from its core ideals and handed political victory to the autocrats and jihadists alike.

The North Atlantic Treaty Organization intervention in Kosovo in 1999 in particular popularized the argument that "humanitarian interventions" might be illegal yet could still be considered legitimate. But what of the opposite: some Security Council-authorized interventions being legal but illegitimate? Absent significant structural and procedural reforms, this will remain a real concern.

The alternative of non-U.N. authorized interventions is even more deeply flawed. The rest of the world is not going to accept that Washington, unilaterally or in concert with coalitions of the willing, has the right to define the thresholds of acceptable and intolerable behavior by everyone else. It is fallacious and wrong to insist that the rest need a permission slip from the U.S. and NATO on what force they may use internally, but Westerners need no permission slip from the U.N. for the use of force internationally.

The solution to both dilemmas is to return to the rule of law that tames the use of force both internally and internationally. And that means codifying the responsibility to protect, acting on it through agreed procedures and institutions, buying into the ICC, and then having the moral force, legal authority, material capacity and courage of conviction to topple the domestic tyrants and international warmongers of the world, from Taliban-ruled Afghanistan and Saddam Hussein's Iraq to Burma and Darfur, and put them on trial at The Hague.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.

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